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Fundamental rights are put in question by the destruction of Public Services

1. The financial and economic crisis that since 2008 has been affecting Europe, has forced many European countries to seek financial assistance from international institutions such as the European Commission, the European Central Bank or the International Monetary Fund.

These institutions have imposed a series of austerity measures that the countries assisted must implement, many of which are directed to the reduction of public expenditure. In accordance to those demands, many States like Greece, Portugal and Spain have implemented severe reductions in the budget of public services.

However, those States did not properly consider the specific situation of the public service of justice and of judges and prosecutors, and the fact that the functions of the latter are essential to the guarantee of the rights and liberties of citizens specially in this situation in which the most essential rights are being put in risk.

At the same time, those governments that refuse to accept the specific functions of judges and prosecutors, granted numerous exceptions to high public servants of central banks and regulators, arguing that due to their independence, they could not be affected by the same cuts.

It is in moments of crisis that citizens need the most an independent and reinforced power, to which they can appeal to discuss and defend all their rights.

Therefore, the magistrates associations have the duty to defend not only the independence but also the image of the independence of the judicial power, as well as to ensure the respect for the existing laws that protect it.

2. This question has already been analysed by the European Parliament, in the working document “on the situation of Fundamental Rights: standards and practices in Hungary” presented in September 2012 to the Committee on Civil Liberties, Justice and Home Affairs. It is clearly said in that report: “any doubts in the independence and impartiality of judges based on systematical flaws in the Constitution and national laws could have a significant impact on the on-going cooperation in the common area on freedom, security and justice based on the principle of mutual recognition as enshrined in Articles 81 TFEU (civil matters) and 82 TFEU (criminal matters). (…) Therefore, any problems with the appearance of the independence and impartiality of judges would endanger the whole existing structure based on mutual trust. At the same time any cross-border issue when implementing EU law could trigger directly Article 47(2) of the Charter in connection with Article 52(3) of the Charter on the harmonious understanding of rights guaranteed also by the ECHR”.

3. The 8th of October, the Italian Constitutional Court has decided (in case 223/2012) that the cuts of salaries of judges and prosecutors are unconstitutional, stressing in its decision the clear difference between them and any other public servants. The Court said, inter alia, that the “relationship between the State and the magistrates, as a separate body within the State, cannot be reduced to a mere labour relation, where the contractor / beneficiary of the work force is at the same time regulator of that relation” and that one of the dimensions of the principle of independence of the judiciary – as stated in the Constitution – is the guarantee of economic independence and stability of judges and prosecutors, that “cannot be subjected to systematic and periodic negotiations and conflicts with the others powers of the State”, situation that would create the general idea of the legislative and executive power’s dominance over the judicial power.

The decision of the Italian Constitutional Court brings the discussion to its core aspect – the relations between the different powers of the State and the independence of the judiciary. And by doing so, it points to the fact that the States that have already cut the salaries of judges and prosecutors are acting against EU Law.

4. Article 47 of the Charter of Fundamental Rights of the European Union grants to all EU citizens the right to a fair hearing by an independent and impartial tribunal. As the Italian Constitutional Court stressed, the cuts carried out by some States (and that other States presumably also prepare to enforce) are an illegitimate interference in the judicial power by the legislative and executive powers, minimizing the role of judges and prosecutors, not considering the special role they play in society and in the structure of the State.

5. Article 53 of the CFREU establishes a “maximum standard” clause – if one of the Member States grants to its citizens a determined fundamental right, all the other European citizens must expect that right to be also granted to them. Therefore, the Italian Constitutional Court decision grants to all European citizens the right to have a judicial power that is not subject to interferences in the economic aspect of the independence of judges and prosecutors by the other powers of the State.

6. In conclusion, the measures implemented by European States that have severely reduced the budget of the public service of justice, including the salaries of judges and prosecutors directly affect the principle of independence the judiciary and are therefore contrary to EU Law.

According to the EU Treaty, it is the role of the European Commission to protect and defend EU Law and prevent Member States of breaking it. The European Parliament, on the other hand, must control the activity of the Commission.

Based on the above mentioned, the CA of MEDEL, in this situation of crisis in which the fundamental rights are put in question by the destruction of public services:

– restates the special role of fundamental rights in the construction of European Union and the specific mission of the judicial power in protecting those rights;

– recalls that the independence of the judicial power as essential principle of the Rule of Law and also directly protects the fundamental rights of the citizens;

– decides to mandate the Bureau:

i. to present a formal complaint in the European Commission, based on the breach of EU Law, against the Member States that have adopted measures severely reducing the budget of the public service of justice to an extent that the proper functioning of the judicial system is endangered, including the economic statute of judges and prosecutors, disregarding the minimum standard of their remuneration;

– present a report to the European Parliament, denouncing the breach of EU Law by those same States.

Bucharest, 10/11/2012.

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